Exhibit 2.9
AMENDMENT NO. 1 TO THE
MEMORANDUM OF AGREEMENT
REGARDING
APRISMA-ENTERASYS INTER-COMPANY OPERATIONS
THIS AMENDMENT NO. 1 TO THE MEMORANDUM OF AGREEMENT REGARDING APRISMA-
ENTERASYS INTER-COMPANY OPERATIONS (this "Amendment") is entered into as of
August 3, 2001, by and among Aprisma Management Technologies, Inc., a Delaware
Corporation ("Aprisma") and Enterasys Networks, Inc., a Delaware corporation
("Enterasys"). Capitalized terms not otherwise defined in this Amendment have
the meaning given them in the Memorandum of Agreement Regarding Aprisma-
Enterasys Intercompany Operations, dated as of June 3, 2000, by and among
Aprisma and Enterasys (the "Agreement").
RECITALS
A. WHEREAS, pursuant to Section 10.1 of the Agreement, the Agreement
may not be amended except by a written agreement executed by the parties
thereto.
B. WHEREAS, it is intended that effective as of August 6, 2001,
Enterasys Networks, Inc. will merge with and into Cabletron Systems, Inc. and
the surviving corporation will be renamed Enterasys Networks, Inc. (the
"Merger").
C. WHEREAS, the parties to the Agreement desire to amend certain
provisions of the Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, Aprisma and Enterasys hereby agree as follows:
1. Pursuant to Section 10.1 of the Agreement, Section 9 of the
Agreement is hereby amended to read in its entirety as follows:
"9. DISPUTE RESOLUTION
9.1 Consultation - The Parties shall make good faith efforts to resolve
any dispute arising under this Agreement ("Dispute") through
consultations between their chief executive officers or their
designated representatives. These individuals shall meet in person or
speak via conference call for the purposes of resolving the Dispute
within seven (7) Business Days of a Notice of the Dispute being
received. Notwithstanding the existence of any Dispute, the Parties
shall continue to operate under the Agreement as if no dispute exists.
9.2 Unresolved Disputes - If the Parties are unable to resolve a Dispute
through the consultation in 9.1, the Dispute shall be submitted to
final and binding arbitration under the then current Commercial
Arbitration Rules of the American Arbitration Association ("AAA"), by
three (3) arbitrators in Boston, Massachusetts. Such arbitrators shall
be selected by the mutual agreement of the Parties or, failing such
agreement, shall be selected according to the aforesaid AAA rules. The
arbitrators will be instructed to prepare and deliver a written,
reasoned opinion stating their decision within thirty (30) days of the
completion of the arbitration. The prevailing party in such
arbitration, as determined by the arbitrator, shall be entitled to
expenses, including costs and reasonable attorneys' and other
professional fees, incurred in connection with the arbitration (but
excluding any costs and fees associated with prior negotiation or
mediation). The decision of the arbitrator shall be final and non-
appealable and may be enforced in any court of competent jurisdiction.
9.3 Injunctive Relief - Notwithstanding the foregoing Section 9.2, no
Dispute is required to be negotiated or arbitrated prior to seeking
injunctive relief from a court of competent jurisdiction to prevent
serious and irreparable injury, including without limitation any such
injury arising from (i) the breach of any obligation of
confidentiality or (ii) infringement, misappropriation, or misuse of
any intellectual property right. However, the parties to the Dispute
shall make a good faith effort to negotiate such Dispute, according to
the procedures set forth in Section 9.1, while such court action is
pending.
9.4 Exclusive Processes - The processes set forth in this Section 9 shall
be the exclusive processes for the resolution of a Dispute among the
Parties."
2. The Agreement is hereby amended by replacing the reference to
Cabletron's then-current standard U.S. warranty or license in the first sentence
of Section 3.1 of the Agreement with a reference to "the then-current standard
U.S. warranty or license of Aprisma in the case of products or services provided
by Aprisma and the then-current standard U.S. warranty or license of Enterasys
in the case of products or services provided by Enterasys" and by replacing the
reference to Cabletron in the last sentence of Section 3.1 of the Agreement with
"Aprisma or Enterasys, as applicable".
3. Aprisma hereby consents to any deemed assignment of the Agreement,
as amended hereby, by Enterasys as a result of the Merger, including without
limitation for the purposes of Section 10.3 of the Agreement.
4. This Amendment may be executed in two or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
5. This Amendment when executed by Aprisma and Enterasys as of the
date hereof shall have been effected in accordance with Section 10.1 and Section
10.3(iii) of the Agreement and accordingly shall be binding upon each such
party.
6. This Amendment shall be governed by and construed in accordance
with the laws of the State of New Hampshire without regard to applicable
principles of conflicts of law.
7. The Agreement and this Amendment and the documents referred to
therein and herein constitute the entire agreement between the parties hereto
pertaining to the subject matter thereof and hereof.
IN WITNESS WHEREOF, Aprisma and Enterasys have caused this Amendment to be
executed and delivered by their respective officers thereunto duly authorized,
all as of the date first written above.
APRISMA MANAGEMENT
TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxxx
Title: Treasurer
ENTERASYS NETWORKS, INC.
By: /s/ Xxxxx Xxxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxxx
Title: Treasurer
